Check the machinery before the merits
Before arguing the numbers, check that your subcontract still lets you bring each head at all. A missed notice, a condition precedent, a final certificate gone conclusive or a signed settlement can close a claim before anyone looks at the merits.
Updated: . By Jack Butler-Kettle, Construction Claims Consultant.
Why it matters
Contracts close doors quietly. Some make a notice a condition precedent: a step that must be taken before a claim can succeed at all. A claim not notified in time. A final certificate that became conclusive while nobody was watching. A settlement letter that said everything was resolved. Each can kill a head before anyone reads the merits. A strong case built on a closed head is wasted twice: once in preparation, and again when the other side raises the time bar in its first paragraph. So check the procedure first. It is cheap, the answer is yes or no, and it tells you which heads are still worth proving.
How to do it
- List the subcontract's notice, claim and condition precedent rules for each head, and the dates they fell.
- Check the correspondence file for the notice or claim that met each rule, and note its date.
- Check whether any certificate has become conclusive, and whether any settlement or waiver wording has been signed.
- Refer anything unclear to your solicitor before spending money on the merits.
- Drop or reframe any head where the route is closed, and put the effort into the heads that remain open.
Example
Illustrative example. The scenario and figures are invented.
The facts
A subcontractor is preparing to refer three heads worth £120,000. The surveyor checks the subcontract's procedural rules against the file before gathering any evidence.
What happens
- The loss and expense head, £60,000, required notice within a stated period of the event. The file shows a notice sent within it.
- The variations head, £45,000, needed verbal instructions confirmed in writing within a set number of days. Nine of the twelve were confirmed in time.
- The contra-charge head, £15,000, turns on whether a Pay Less Notice was served; none was.
- The three variations confirmed late, worth £12,000, are removed, and the solicitor is asked whether anything can be saved.
The outcome
The referral goes ahead on £108,000 of heads, with the route confirmed open. The other side argues anyway that the adjudicator cannot decide it, and loses, because the dates were checked first.
To have this done for you, see our Final Account Claim service.